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2015 (9) TMI 688 - CESTAT MUMBAI

2015 (9) TMI 688 - CESTAT MUMBAI - 2016 (42) S.T.R. 377 (Tri. - Mumbai) - Denial of refund claim - when the services are provided within and outside India and the recipient has paid the Service Tax, whether the appellant is entitled to refund on the part of services provided outside India by the service provider - Held that:- Admittedly the claim of refund is not time barred under the provisions of Finance Act or under Section 11B of the Central Excise Act. Hence, the ruling of the Hon'ble Bomba .....

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t leviable under the Act, takes the nature of deposit. - No amount can be collected from the assessee by the Revenue if it is not in accordance with the tax law, as has been provided under Article 265 of the Constitution of India - Decided in favour of assessee. - Appeal No. ST/88031/13 - Final Order No. A/2493/2015-WZB(SMB) - Dated:- 29-6-2015 - Anil Choudhary, Member (J), J. For the Appellant : Shri D H Nadkarni, Adv For the Respondent : Shri B K Iyer, Superintendent (AR) ORDER Per: Anil Choud .....

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ch, part of service is rendered in India and the place of removal/Port located in India and the part of the services is discharged at Port of destination and beyond or outside India and Service Tax has been charged in the invoices by the provider, as per the Finance Act, 1994. The second issue is that, when the services are provided within and outside India and the recipient has paid the Service Tax, whether the appellant is entitled to refund on the part of services provided outside India by th .....

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the appellant till place of delivery and any loss or damage occurred on or before delivery of goods is to be borne by them (appellant). In the export invoice, service charges i.e freight documentation, handling charges, inland haulage charges are forming part of cost borne by them. For all these services, the service provider M/s Maersk Line has raised the invoices charging the Service Tax on total service being provided, which has been paid by the appellant. Subsequently, the appellant applied .....

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icating authority that the refund claims against service like, documentation fee (at destination), handling charges (destination) are rightly inadmissible in view of the condition of Notification No. 17/2009. 3.1 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the impugned order upheld the order of rejection and have recorded the following findings:- 7. The adjudicating authority has rejected the refund of Service Tax paid on the three services of Hand .....

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rvices in the foreign countries is not denied by the appellant also. Section 65(82) of Finance Act, 1994 defines "Port service" as any service rendered by a port or other port, or any person authorized by such port or other port, in any manner, in relation to a vessel or goods. Section 65(105)(zn) defines any service provided or to be provided to any person, by any other person, in relation to port services in a port, in any manner, as liable to Service Tax. Section 65(81) defines &quo .....

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, 1908 includes within its ambit minor ports located in India, as well. No port of any foreign country is governed by Major Port Trusts Act, 1963 or Indian Ports Act, 1908 and hence, activities performed in foreign port will not attract Service Tax under port service. The above statement gets support from Rule 3(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 which clearly mandates that service defined in Section 65 (105)(zn) and 65 (105)(zzl) will be .....

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estination, inland haulage charges (import) and documentation fees-destination for the quarters July, 2010 to September, 2010 and October, 2010 to December, 2010 of the appellant was earlier also decided by the Commissioner (Appeals), Central Excise & Customs, Nashik vide Order-in-Appal Nos. AKP/16/NSK/2012 dated 31.01.2012 and AKP/42/NSK/2012 dated 22.03.2012 on the appeals of the appellant and on the above discussed grounds. 7.3 The appellant relied upon the decisions in the case of (i) CC .....

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- involved in terminal handling charges at destination, inland haulage (import) charges and documentation fees-destination, is liable to be rejected. 4. Being aggrieved, the appellant is in appeal before this Tribunal on the ground that the appellant have paid by way of Service Tax as per the invoice raised by the service provider located in India. He further urged that the Revenue may refund the Service Tax paid on services covered under Notification No. 17/2009 and paid to the service provider .....

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ice, where the location of the provider of service as well as that of the recipient of service is in the taxable territory, shall be the location of the recipient of service." 4.1 The learned Counsel further states that admittedly both the service provider and service receiver are located in India and as such the whole part of services is deemed to be in India. The learned Counsel further urges that refund has been rejected on the ground that Notification No. 17/2009 provides for refund of .....

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gainst the policy of the Govt. of India not to export tax and duty. 4.3 The learned Counsel further relies on the ruling in the case of KVR Construction Vs. Commissioner of Central Excise, Bangalore - 2010 (17) STR 6 (Kar) in a Writ Petition where petitioner was held not liable to pay Service Tax vide the order as challenged, in case of civil structure constructed and put to use for education, religious, charitable, health, sanitation and philanthropic purpose, in the light of CBE&C Circular .....

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le Division Bench also upheld the decision of the learned Single Judge observing as follows:- "23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this service tax, the .....

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the facts of their case and no part of refund has been rejected on the ground of unjust enrichment. 4.4 The learned Counsel also relies on the ruling of the Hon'ble Delhi High Court in the case of United New of India Vs. Union of India - 2004 (168) ELT 442 (Del) where in the facts that the petitioner deposited an amount of money with the Revenue on 19-1-1974 in anticipation of payment of duty as it was likely to receive goods, which were dispatched from United Kingdom. The petitioner was ant .....

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which "short landing certificate" was issued by the appropriate authority. There is no dispute with regard to the aforesaid aspects. The application of the petitioner came to be rejected on the ground that the claim for refund was received in the Customs House on 16-9-1974 while the duty was paid on 19-1-1974. In view of this, it was considered that the claim was made after the expiry of the time limit of six months prescribed in Section 27(4) of the Customs Act, 1962 and, the claim w .....

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of excess paid, with interest. 4.5 The learned Counsel further states that the total service provided by the service provider and received by the appellant have been provided in the course of export transaction. Accordingly, the appellant prays for setting aside the impugned order to the extent it rejected the refund claim, with consequential relief. 5. The learned AR relies on the impugned order. He further relies on the ruling of the Hon'ble Bombay High Court in the case of Andrew Telecom .....

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stinguished the view taken by the Karnataka High Court in the case of KVR Construction (supra) observing that the case have to be considered in its own facts. It was further observed that in the case of deposit, the matter was outside provisions of Section 11B then the rule of limitation prescribed thereunder will apply. The Hon'ble Bombay High Court further observed that if the amount paid cannot be taken to be the duty of excise, then, the bar of limitation cannot be applied. Hon'ble H .....

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